Coyotl Tezcatlipoca Loses But So Does City in Ruling Over Costa Mesa Law Targeting Dissent

The Costa Mesa City Council was legally in the right to twice remove immigrant-rights activist and punk rocker Coyotl Tezcatlipoca (a.k.a. Benito Acosta) from council meetings in 2006 under a municipal ordinance that makes it a misdemeanor for members of the public to engage in "disorderly . . . or disruptive behavior," a federal appeals court has ruled. How disorderly? At one meeting, he called then-Mayor Allan Mansoor a "fucking racist pig."

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But Tezcatlipoca, a founding member of Colectivo Tonantizin, did sue in federal court, alleging city officials, police officers who escorted him out of the council chambers and the city ordinance known as § 2-61 all violated his constitutional rights under the First and Fourth Amendments.

A federal jury sided with the city, and this week so did a three-judge panel of the 9th Circuit Court of Appeals in Pasadena.

Mostly.

Judge Richard Tallman, writing for a three-judge panel, found the city is constitutionally protected 86'ing members of the public for being "disorderly" or "disruptive," but he has a problem with the inclusion of a word sandwiched between the other two in § 2-61.

"Prohibiting 'insolent' behavior cannot be narrowed to include only an actual disruption," Tallman writes. "Insolent is defined as 'proud, disdainful, haughty, arrogant, overbearing; offensively contemptuous of the rights or feelings of others' or 'contemptuous of rightful authority; presumptuously or offensively contemptuous; impertinently insulting.' This type of expressive activity could, and often likely would, fall well below the level of behavior that actually disturbs, disrupts, or impedes a city council meeting."

However, because the offending "insolent" cannot be removed without altering the meaning of the ordinance, the panel chose not to toss it entirely.

"Removal of 'insolent' does not defeat the central purpose of § 2-61," Tallman observes. "The central purpose is to prevent actual disruptions during and impediments to conducting an orderly council meeting. The remaining portion of § 2-61 stands on its own and is independently applicable, unaided by the word insolent."

But Judge N. R. Smith writes in his dissent the law cannot be saved and is "unconstitutional in its entirety, rather than just in part."

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Besides the meeting with the f-bomb dropped on a future California assemblyman, Tezcatlipoca was escorted out of the council chambers by police at a second for trying to get the attention of Jim Gilchrist, co-founder of the Minuteman Project.

Matt Coker has been engaging, enraging and entertaining readers of newspapers, magazines and websites for decades. He spent the first 13 years of his career in journalism at daily newspapers before "graduating" to OC Weekly in 1995 as the paper's first calendar editor. He has contributed as a freelance editor and writer to several publications and been the subject of or featured in several reports online, in print and on the radio and television. One of countless times he returned to his Costa Mesa, CA, home with a bounty of awards from a journalism competition, his wife told him to take out the trash.